Jaswant Kumar Bhatia vs Gul K. Achhra

Heard Ramesh P. Bhatt, Senior Advocate, assisted by Mr. Kailash Pandey, Advocate, for the appellant and Mr. Mohit P. Bhansali, Advocate, for the respondent, in both the appeals.

The judgment debtor has filed above appeals from the order of State Consumer Disputes Redressal Commission, Maharashtra, dated 13.12.2021, passed in EA/17/07, (filed in CC/12/336) and EA/17/08, (filed in CC/12/337), issuing Recovery Certificates to the Collector, for recovery of the decretal amount in both the complaints, under Section 25 of Consumer Protection Act, 1986. Both the appeals are consolidated and heard together as they arise out of a common order.

M/s. City Builders through its proprietor Jaswant Kumar Bhatia launched a group housing project in the name of “City Embassy” at Plot No.17, Sector-7, Kopar-Khairane, Navi Mumbai, in the year 1995. Gul K. Achhra applied for allotment of a flat on 07.11.1995 and deposited Rs.770000/-, time to time. He was allotted Flat No.101, admeasuring built up area 1570 sq.ft., Basic Sale Price Rs.1256000/-. Smt. Kanta Gul Achhra applied for allotment of a flat on 12.07.1995 and deposited Rs.1000000/- time to time. She was allotted Flat No.102, admeasuring built up area 1645 sq.ft., Basic Sale Price Rs.1316000/-. Payment plan was “Construction Linked Payment Plan” for both the allottees. Debt Recovery Tribunal, Mumbai attached the building of “City Embassy” during construction on 23.04.1996, in the proceeding for recovery of loan against the appellant. Thereafter Income Tax Authority attached “City Embassy” building on 08.01.2003. Therefore neither the construction was completed nor possession was given to the allottees/respondents, over the flats allotted to them.

Gul K. Achhra (the respondent) filed CC/12/336 for directing the appellant to deliver possession of the flat complete in all respect. Smt. Kanta Gul Achhra (the respondent) filed CC/12/337 for directing the appellant to deliver possession of the flat complete in all respect. Both these complainants were decided by a common order of State Consumer Disputes Redressal Commission, Maharashtra, dated 17.10.2016. State Commission allowed the complaints with cost of Rs.25000/- and directed the appellant to deliver possession of the flats complete in all respect to the complainants and execute conveyance deed in their favour, after taking balance sale consideration, within a period of four months. The respondents were directed to deposit balance sale consideration within two months. A compensation of Rs.one lac to both the respondent was also awarded, for mental agony and harassment.

The appellant challenged aforesaid order, in First Appeal No.45 of 2017 and First Appeal No.46 of 2017, before this Commission. This Commission, vide order dated 31.08.2017, granted conditional stay and directed the appellant to deposit entire amount deposited by the respondents along with interest @12% per annum from the date of respective deposit till 31.12.2017. The appellant challenged the stay orders dated 31.08.2017 in SLP (Civil) Nos.28820-28821 of 2017, in which Supreme Court vide order dated 10.11.2017, modified the orders dated 31.08.2017, to the extent that the appellant was directed to deposit the aforesaid amount before this Commission, which was directed to be kept in fixed deposit till the disposal of the appeal.

In the meantime, Gul K. Achhra (the respondent) filed EA/17/01 and Smt. Kanta Gul Achhra (the respondent) filed EA/17/02, for punishing the appellant under Section 27 of Consumer Protection Act, 1986 inasmuch as in compliance of order dated 17.10.2016 the complainants tendered the balance amount through Pay Order dated 08.11.2016, which had been refused by the judgement debtor and the judgment debtor was not willing to comply with the order dated 27.10.2016. State Commission, vide orders dated 06.07.2017, issued non-bailable warrant against the appellant. The appellant filed AE/71/2017 and AE72/2017, against the order dated 06.07.2017.

First Appeal Nos.45 of 2017, First Appeal No.46 of 2017, Appeal Execution No.71 of 2017 and Appeal No.72 of 2017 were decided by this Commission by a common order dated 08.03.2019. This Commission found that it was not possible to the appellant to complete the construction as he had already sold it to the third party. Therefore, Jaswant Kumar Bhatia was directed to refund the amount equivalent to current Ready Reckoner Value of the flat. The amount already deposited by the builder with this Commission along with interest accrued on it was directed to be paid to the complainants and adjusted in the value of the flat. The balance amount was directed to be paid to the complainants within eight weeks of the determination of the Ready Reckoner Value of the flat. The parties were directed to appear before State Commission on 24.04.2019 for the purposes of determination of value of the allotted flat as on the date of judgment on the basis of Ready Reckoner issued by Government of Maharashtra in respect of area in which the allotted flats exist. In case the builder fails to make payment in terms of that order then the said amount would carry interest @10% p.a. from the date of order of this Commission.

In compliance of the order of this Commission dated 08.03.2019 the parties appeared before State Commission on 24.04.2019. The State Commission, on the basis of Ready Reckoner determined the value of the flats allotted to the respondents. However, the appellant failed to pay balance amount after adjusting the amount deposited before this commission along with interest accrued on it within the time allowed by this Commission. It is alleged that the appellant deposited Rs.2000000/- on 05.09.2019. As the appellant failed to comply the order of this Commission, the respondents moved applications (registered as EA17/07 and EA/17/08) under Section-25 of Consumer Protection Act, 1986, for issue of recovery certificates for realization of balance amount. State Commission by the impugned order dated 31.12.2021 has issued recovery certificates to the Collector, for recovery of Rs.8974946/- in EA/17/07 and Rs.8618326/- in EA/17/08. Hence these appeals have been filed.

The appellant filed affidavits on 21.02.2022, in these appeals before this Commission. In paragraph-4 of these affidavits, total amount payable in EA/17/07 upto February, 2022 was Rs.9159651/- and total amount payable in EA/17/08 upto February, 2022 was Rs.8803811/- have been mentioned. The appellant has shown his willingness to pay the aforesaid amount in five equal instalments at the interval of every two months, according to the schedule given in paragraph-5 of these affidavits.

During the arguments the counsel for the appellant submitted that in view of willingness given by the appellant in his affidavits dated 21.02.2022, the appeals be disposed of permitting the appellant to pay the balance amount in five, two monthly equal instalments. The counsel for the respondents in presence of Gul K.Achhra showed his no objection in fixing five, two monthly instalments, however, he submitted that the property of the appellant which has been attached in pursuance of order of the State Commission may not be released till the full payment of the amount. As the parties have come to the terms, the appeals are being disposed of.

ORDER

Both the appeals are disposed off in terms of the affidavits filed by Jaswant Kumar Bhatia (the appellant) on 21.02.2022 in these appeals. The appellant is permitted to make payment according to the schedule as given in paragraph 5 of the affidavit on or before the date mentioned in it. In case the appellant commits default in payment of any of the instalment in the respective appeals then it will be open to the respondents to move an application before State Commission who shall issue necessary recovery certificate for recovery of the balance amount. After payment of all the instalments, the interest payable on the amount as mentioned in paragraph-5 of the affidavits from February, 2022 till the date of passing this order shall also be paid by the appellant to the respondents. On satisfying the decree for full amount, the property of the appellant will be released from attachment.